It
is a common political strategy in Washington, when a member’s
pet bill is in trouble, to signal an interest in accepting “reasonable”
changes. Aware that John McCain’s Dietary Supplement Safety Act
will not move without significant change, he now aims to save the awful
measure, quell the loud opposition. and invite greater support by suggesting
that he would entertain a lot of changes. The bill, however, is a disaster
from beginning to end. The harm it is advertised to address (the sale
of supplements as steroids) is already illegal. In short, there is no
room for compromise on this bad bill. It needs to go to the dust bin.

McCain’s
bill has hit a wall of opposition, a wall constructed by significant
protests from consumers, physicians, and industry, precisely because
it invites FDA to remove supplements from the market and it regulates
down to the grandmother who distributes supplements from her basement.
The bill is the political equivalent of a loathsome, contagious disease.
Those who sign onto it will likely suffer the same rebuke as Senator
McCain. Consequently, weeks after its introduction, it still has only
one co-sponsor, the original one, the retiring liberal Democratic Senator
Byron Dorgan.

While
Senator McCain claims the bill is designed to protect consumer interests,
his claim is belied not only by the bill’s terms but also by the
fact that he introduced it on behalf of lobbyists for the major national
baseball leagues, themselves representatives of corporate interests.
As Congressman Ron Paul has astutely pointed out, the bill favors the
pharmaceutical industry and threatens consumer access to supplements.

Senator
McCain’s bill was advertised as a means to stop steroids from
being sold as supplements, but instead the bill gives FDA broad new
powers to ban all manner of supplements other than those sold as steroids,
to require new registration and reporting by all who sell supplements,
and to cause simple distributors of supplements to be open to FDA inspections,
even civil penalties and fines, for the first time. In short, McCain’s
bill greatly expands FDA discretionary power to remove a wide variety
of safely consumed dietary supplements from the market and to cause
presently law abiding citizens to become law violators for failing to
file registration forms and keep records (neither of which are remotely
needed to protect the public from supplements sold as steroids).

The
bill shocks the conscience because it comes from a man who has said
many times he is not a friend to government regulation. The bill also
shocks the conscience because while it gives FDA extensive new powers,
it includes not a single provision to protect Americans from FDA abuse
of its powers. The measure should be renamed the “In FDA We Trust”
bill because it trusts one of the most corrupt and abusive agencies
of the government to expand its authority over law abiding citizens.
It also suggests that Senator McCain is deaf and dumb to the congressional
record. The bill follows years of Congressional testimony revealing
abuses of power by the FDA (from the knowing approval of unsafe drugs,
like Vioxx, to the exercise of undue influence over agency decision-making
by representatives of drug companies). The bill follows the U.S. Senate’s
findings that FDA harbors an unscientific bias against dietary supplements
(recorded in the Senate’s legislative history for the Dietary
Supplement Health and Education Act). The bill follows proof that FDA
unlawfully refused to implement provisions of the DSHEA to which Commissioner
Kessler objected. The bill follows proof that FDA openly refused to
abide by numerous federal court orders against its actions. The bill
follows proof that FDA censors truthful supplement claims. The bill
follows proof that FDA routinely places people with conflicts of interest
on drug review panels to ensure that drugs would be approved despite
serious safety questions.

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The
bill invites the FDA to ban supplements sold before October 15, 1994,
unless the FDA Commissioner in her sole discretion deems them safe and
posts them on a list of “Accepted Dietary Ingredients.”
Hundreds of dietary supplements now lawfully sold and safely consumed
in the market could suddenly be deemed unlawful to sell. The FDA Commissioner,
no friend of supplements, could pick and choose with no defined standard
what she wished to have in the market and what she wished to remove.

Moreover,
the bill forces for the first time every distributor, including every
multi-level marketer in the United States, to register with the agency,
identify all products, list all ingredients in those products, and retain
records for FDA inspection. In his heart of hearts McCain does love
regulation. He would take the Avon lady, who sells supplements, and
regulate her with the same tenacity as the largest dietary supplement
company. He would permit FDA investigators to visit her home to inspect
her supplements and verify her recordkeeping was in order. He would
permit FDA to charge her with civil law violations and fine her if her
records were not in order or if she failed to file registration papers.
McCain must be entirely comfortable with these intrusions because his
bill would make them the law.

In
an earlier article, I lampooned the bill with a Joe the Plumber example.
I said Joe probably has to sell supplements in this bad economy, was
promised by Candidate McCain regulatory relief, but would find himself
now the victim of extensive new federal regulation visited upon him
at the request of John McCain. Joe, you’ve been betrayed (again).

Some
on the Hill and in the trade associations are now playing the field
for McCain, telling the supplement industry that a compromise bill can
be crafted. This is to lessen the ire against the bill. The problem
with accepting that compromise approach is that it increases the likelihood
that some part of this bad bill will make it into the law. If a version
of McCain’s bill ever passes the Senate and another version of
it the House, it would be negotiated in conference where supplement
haters like Henry Waxman would do FDA’s bidding and add into the
bill loose language to permit a gross expansion in FDA regulatory power.

Going
part way down the slope gets you to the bottom faster than if you refuse
to get on the slope at all. Remember the only legitimate thing the bill
could do (render unlawful the sale of supplements as steroids) is already
the law. In short, there is no sound reason for enacting any part of
the McCain bill. There is no such thing as irrelevant legislation. If
you give FDA a new law, FDA will interpret it to provide the agency
with new powers. Better to legislate only when essential, at least that
is the political lesson of our Founding Fathers and one learned by those
who are sincere in their respect for limited government. John McCain,
while claiming to fit within this tradition, does not. He has flunked
the limited government test. He is a friend of energetic government.
He trusts more in regulation and in the discretion of regulators than
he does in the American people.

The
good news is that Congressman J.D. Hayworth is giving McCain a run for
the money. He is running against McCain for the Republican Party nomination
for the U.S. Senate. I urge those who read this column in Arizona to
jump on the Hayworth band wagon. Hayworth would never support an awful
bill like this. You will not find Hayworth trusting in government regulators
more than he does in the liberty of the American people. Its time for
McCain to try a new line of work that does not involve the privilege
of exercising power to restrict other people’s freedoms.

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Additional
good news comes in the form of action by the Alliance for Natural Health-USA
(WWW.ANH-USA.ORG).
I am deeply impressed by that group’s national campaign against
the bill (a campaign that in its first call to action caused 46,000
people to email their U.S. Senators against the bill). ANH-USA is organizing
a rally against the bill in McCain’s home state. If you want to
help make a big difference against this bill, I urge you to send an
email against the bill to your U.S. Senators through the ANH web site.
If you can, send a financial contribution to that group (also through
its web site) to help wage this battle. The bill has no momentum. Its
time to send a resounding message that it must be withdrawn, not revised.

Jonathan
W. Emord is an attorney who practices constitutional and administrative
law before the federal courts and agencies. Congressman Ron Paul calls
Jonathan “a hero of the health freedom revolution.” He has
defeated the FDA in federal court a remarkable six times, four times on
First Amendment grounds. He is the author of The
Rise of Tyranny.

Moreover, the bill
forces for the first time every distributor, including every multi-level
marketer in the United States, to register with the agency, identify all
products, list all ingredients in those products, and retain records for
FDA inspection.